Hon. Jane Magnus-Stinson, Chief Judge.
In 2014, Dianna Sturgis, then a freshman at Indiana University ("
Nine tenants
In addition to Defendants' nine Motions for Summary Judgment, the Court will also consider Objections filed by three Defendants. [
A motion for summary judgment asks the Court to find that a trial is unnecessary
In deciding a motion for summary judgment, the Court need only consider disputed facts that are material to the decision. A disputed fact is material if it might affect the outcome of the suit under the governing law. Hampton v. Ford Motor Co., 561 F.3d 709, 713 (7th Cir. 2009). In other words, while there may be facts that are in dispute, summary judgment is appropriate if those facts are not outcome determinative. Harper v. Vigilant Ins. Co., 433 F.3d 521, 525 (7th Cir. 2005). Fact disputes that are irrelevant to the legal question will not be considered. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986).
On summary judgment, a party must show the Court what evidence it has that would convince a trier of fact to accept its version of the events. Johnson v. Cambridge Indus., 325 F.3d 892, 901 (7th Cir. 2003). The moving party is entitled to summary judgment if no reasonable fact-finder could return a verdict for the non-moving party. Nelson v. Miller, 570 F.3d 868, 875 (7th Cir. 2009). The Court views the record in the light most favorable to the non-moving party and draws all reasonable inferences in that party's favor. Darst v. Interstate Brands Corp., 512 F.3d 903, 907 (7th Cir. 2008). It cannot weigh evidence or make credibility determinations on summary judgment because those tasks are left to the fact-finder. O'Leary v. Accretive Health, Inc., 657 F.3d 625, 630 (7th Cir. 2011). The Court need only consider the cited materials, Fed. R. Civ. P. 56(c)(3), and the Seventh Circuit Court of Appeals has "repeatedly assured the district courts that they are not required to scour every inch of the record for evidence that is potentially relevant to the summary judgment motion before them," Johnson, 325 F.3d at 898. Any doubt as to the existence of a genuine issue for trial is resolved against the moving party. Ponsetti v. GE Pension Plan, 614 F.3d 684, 691 (7th Cir. 2010).
On January 26, 2013, Defendants entered into a lease (the "
The House featured an area above the sunroom on the south side of the structure which was used as a porch or balcony. [
Pursuant to the Lease, Defendants accepted the House in the condition in which it existed as of the date of the Lease, as follows:
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On April 12, 2014, Ms. Sturgis was a freshman at IU. [
At the time of the railing collapse, most Defendants were in various locations within the House, as follows:
Following the railing collapse, officers from the Bloomington Police Department responded to the report of a balcony collapse at the party and noted in their report that "some people were injured during the incident." [
As a result of the fall, Ms. Sturgis suffered a bruised lung, a bruised rib, several scratches on her body, a chipped tooth, and a bruised eye. [
On May 8, 2015, Ms. Sturgis filed suit in this Court against Defendants' landlord alleging negligence. [
Mr. Silvers, Mr. Weingold, and Mr. Bodek each object to Ms. Sturgis' Brief in Opposition to Summary Judgment, [
It is well established that under the Erie doctrine, "federal courts sitting in diversity apply state substantive law and federal procedural law." Gasperini v. Ctr. for Humanities, Inc., 518 U.S. 415, 427, 116 S.Ct. 2211, 135 L.Ed.2d 659 (1996). Mr. Silvers, Mr. Weingold, and Mr. Bodek do not provide any support for the proposition that the rule regarding page limitations constitutes state substantive law such that the Indiana Trial Rule should govern. To the contrary, the page limitations rule is quintessentially procedural in nature. Accordingly, the objections put forth by Mr. Silvers, Mr. Weingold, and Mr. Bodek are
This matter is before the Court on nine Motions for Summary Judgment, with arguments spanning more than twenty briefs. Such voluminous filings obscure the seeming simplicity of the legal principle at issue — negligence. But as observed in 1881, and no less true today, negligence "is a complex conception." Cincinnati, I., St. L. & C. Ry. Co. v. Grames, 8 Ind.App. 112, 34 N.E. 613, 617 (1893) (quoting Oliver Wendell Holmes, The Common Law, 115 (1881)).
Sitting in diversity, this Court's duty "is to decide issues of Indiana state law" by predicting how "the Indiana Supreme Court would decide them today." Doermer v. Callen, 847 F.3d 522, 527 (7th Cir. 2017). As such, this Court must "ascertain the substantive content of state law as it either has been determined by the highest court of the state or as it would be by that court if the present case were before it now." Golden v. State Farm Mut. Auto. Ins. Co., 745 F.3d 252, 255 (7th Cir. 2014) (citations omitted).
For over a century, Indiana courts have set forth the elements of actionable negligence, and although the precise language has changed, the basic test has not. See, e.g., Faris v. Hoberg, 134 Ind. 269, 33 N.E. 1028, 1030 (1893); see also Neal v. Home Builders, Inc., 232 Ind. 160, 111 N.E.2d 280, 284 (1953); Harris v. Indiana Gen. Serv. Co., 206 Ind. 351, 189 N.E. 410, 412 (1934). The "essential elements" for a negligence action in Indiana are "(1) a duty owed to the plaintiff by the defendant, (2) a breach of the duty, and (3) an injury proximately caused by the breach of duty." Yost v. Wabash Coll., 3 N.E.3d 509, 515 (Ind. 2014) (citations omitted).
In this case, the fact of an injury, is not in dispute. Thus, the two questions set forth in the parties' briefs are whether Defendants owed Ms. Sturgis a duty, and, if so, whether they breached that duty. Several Defendants present identical or overlapping arguments on these two questions. Similarly, Ms. Sturgis' arguments in her responses and surreplies are duplicative. As such, the Court will dispense with presenting an exhaustive summary of each brief, and will instead present an overview of Indiana principles of the elements of duty and breach before summarizing the parties' respective arguments for each element.
It is well settled that duty is a legal question for the court. Polet v. ESG Sec., Inc., 66 N.E.3d 972, 978 (Ind. Ct. App. 2016); see also Goodwin v. Yeakle's Sports Bar & Grill, Inc., 62 N.E.3d 384, 394 (Ind. 2016) ("In a negligence action, whether a duty exists is a question of law for the court to decide"); Stephenson v. Ledbetter, 596 N.E.2d 1369, 1371 (Ind. 1992) ("Whether a defendant owes a duty to a plaintiff is a question of law").
Despite the abundance of Indiana cases having to do with duty in a variety of negligence contexts, the parties have not provided, and the Court has not identified, any case with analogous facts. Perhaps the closest is a 1993 Indiana Court of Appeals case in which a plaintiff "found himself on the upstairs balcony with his friend," after "drinking several beers and smoking some marijuana." Dickison v. Hargitt, 611 N.E.2d 691, 693 (Ind. Ct. App. 1993). "Feeling romantically inclined, he took a step toward [his friend] to kiss her, but slipped on some twigs or branches littering the balcony floor. As he slipped, he
Ms. Sturgis' suit is "based upon the negligence theory of premises liability." [
The parties do not dispute Ms. Sturgis' status, and universally classify her as an invitee. [
A related inquiry is whether, as tenants rather than landowners, Defendants' duty to Ms. Sturgis is altered. Ms. Sturgis sets forth a test for the landowner/invitee duty before devoting several pages of briefing to her argument that possession for the purpose of premises liability does not require ownership. [
For their part, Defendants do not argue that a different test for landowner/invitee duty applies to them because of their status as renters. Instead, several Defendants argue that, in addition to failing to present sufficient evidence under the landowner/invitee duty test, they owed no duty to Ms. Sturgis because they lacked the requisite control over the premises. Mr. Rudden, for example, argues that he lacked "control over the house when the accident happened" because he was at the library at the time. [
Numerous premises liability cases in Indiana discuss the concept of control and provide that the "thread through the law imposing liability based on occupancy of a premises is control." Pelak v. Indiana Indus. Servs., Inc., 831 N.E.2d 765, 769 (Ind. Ct. App. 2005) (citation omitted). For instance, Rider v. McCamment, which Mr. Rudden cites in support of his argument that he lacked control over the premises, states that "a landowner is not liable if the landowner did not control the premises and there was someone else, e.g., a contractor, who controlled the premises when the accident occurred." 938 N.E.2d 262, 268 (Ind. Ct. App. 2010). Like Rider, many of the cases dealing with the issue of control
In this case, it is undisputed that some Defendants were on the balcony when it collapsed, while others were at the residence but not on the balcony, and at least one Defendant — Mr. Rudden — was not at the residence at all when the balcony collapse occurred. However, the cases Defendants cite concerning control are not analogous to the facts of this case because those cases involve independent contractors. Moreover, the Indiana Supreme Court's most recent analyses of premises liability do not discuss whether or how the issue of control affects the duty owed to invitees. See generally Goodwin, 62 N.E.3d 384; Rogers, 63 N.E.3d at 320. As such, the Court declines to find as a matter of law that Defendants' duty to Ms. Sturgis was limited or eliminated based on their locations at the time of the balcony collapse. Rather, the Court will analyze what duty, if any, Defendants owed to Ms. Sturgis pursuant to the duty owed to invitees under Indiana law.
In examining the duty that a landowner owes an invitee, the Court's starting point is a decision handed down the Indiana Supreme Court last year — Rogers v. Martin, 63 N.E.3d 316 (Ind. 2016). In Rogers, Chief Justice Rush began by noting that the duty a landowner owes to an invitee is "well established: a landowner must exercise reasonable care for the invitee's protection while the invitee is on the premises." Id. at 320. However, the Court acknowledged that "inconsistencies in Indiana case law have generated confusion over this issue." Id. at 321. As such, the Rogers Court comprehensively examined "how the landowner-invitee duty has progressed over time" and sought to provide "a workable framework for the future." Id. at 321.
The resulting framework distinguishes between "invitee duty in cases involving injuries due to conditions of the land," and those involving injuries "due to activities on a landowner's premises unrelated to the premises' condition." Id. at 323 (emphasis in original). For the latter, "foreseeability is the critical inquiry in determining whether the landowner's duty of reasonable care extends to the particular circumstances at issue." Id. at 323. In contrast, for cases involving injuries due to conditions of the land, Rogers reiterated that the test from the Restatement (Second) of Torts section 343, adopted by the Indiana Supreme Court in Burrell, 569 N.E.2d 637, controls. Id. at 323.
In light of the framework set forth by Rogers, the Court must determine whether Ms. Sturgis' case involves conditions on the premises or activities on the premises unrelated to the premises' condition. Defendants' Motions for Summary Judgment fail to explicitly discuss the case within the Rogers framework. [
In response, Ms. Sturgis appears to agree, citing the three element test from Burrell and arguing that a jury question exists as to whether Defendants breached a duty with respect to a dangerous railing. [
In his reply brief, Mr. Rudden states that this argument "is a non-starter." [
In her surreplies, Ms. Sturgis dispenses with discussing the railing all together, focusing not on the condition of the premises, but on the activities that she alleges occurred there. In doing so, she argues that this case presents a question of "whether or not it is foreseeable that if you feed an unlimited, unsupervised supply of alcoholic beverages and make marijuana available and then allow people to go out on a second story balcony in large numbers, that said conduct could result in serious injury or harm." [
Despite that argument, and based on the evidence presented, the Court concludes that this is a case concerning conditions on the premises. Notwithstanding her shifting theories of negligence, Ms. Sturgis has presented no evidence that her injuries occurred, "due to activities on a landowner's
A case handed down by the Indiana Supreme Court the same day as Rogers provides a helpful contrast as an example of an injury that the Court analyzed as having occurred as a result of activities on the premises. In Goodwin v. Yeakle's Sports Bar & Grill, Inc., three plaintiffs sued a bar after a patron shot them for allegedly making a derogatory remark about his wife. In determining whether to impose a duty upon the bar, the Court examined whether the injury was foreseeable. 62 N.E.3d at 393-94. Goodwin fits within Rogers' definition of a case involving injuries "due to activities on a landowner's premises unrelated to the premises' condition," 63 N.E.3d at 323, because the injury at issue had nothing whatsoever to do with the bar's safety as a structure. The same cannot be said of Ms. Sturgis' injury and the House at which the injury occurred. Put simply, her injury was related to the premises' condition.
Moreover, the mere act of standing on a balcony does not transform this case into one concerning activities on the land. On this point, Burrell is instructive. In Burrell, the plaintiff was involved in an activity wherein he "climbed up," and "squatted on a rafter" before he "moved off the rafter and knelt" on an item, which he then fell through, crashing to the floor and breaking his pelvis in three places. Burrell, 569 N.E.2d at 638-39. Nonetheless, the Indiana Supreme Court definitively stated that Burrell "involved an injury due to a condition on the land." Rogers, 63 N.E.3d at 323. Similarly, despite the fact that an activity was occurring at the time Ms. Sturgis was allegedly injured, the injury at issue involved a condition on the land — namely the latent instability of the balcony railing. Indeed, as Ms. Sturgis states in her briefs in opposition to summary judgment, "[i]t is undisputed that the railing broke or collapsed during the party." [
Before doing so, the Court will briefly address several arguments throughout the parties' briefs in which the legal framework set forth by Rogers v. Martin is misapplied, misstated, or misunderstood.
First, one issue that dominates many of Defendants' reply briefs is the concept of foreseeability. Mr. Bodek and Mr. Silvers, for instance, argue that they "owed a duty to Ms. Sturgis under Section 343 only if the risk of harm due to the dangerous condition is foreseeable." [
In addition, the test set forth by several Defendants, "focuses on the general class of persons of which the plaintiff was (i.e. a party guest) and whether the harm suffered was of the kind normally to be expected (i.e. harm caused by a structural failure), without addressing the specific facts of the occurrence." [
Finally, Ms. Sturgis and many Defendants draw the Court's attention to Polet v. ESG Sec., Inc., 66 N.E.3d 972. Polet was decided a few months after Rogers, but presents a very different fact pattern in which the Indiana Court of Appeals considered the duty a security firm had with respect to a stage collapse in inclement weather. Id. at 981. In determining the security firm's duty, the Polet Court noted several factors, including the content of an agreement involving the concert venue, the scope of work in said agreement, and the players involved in a meeting related to the weather. Id. at 981. None of these factors are applicable to Ms. Sturgis' case. Polet, therefore, is not determinative of the outcome of Ms. Sturgis' claims against Defendants. Instead, the Court will consider Ms. Sturgis' claims consistent with the methodology set forth by Burrell.
Turning then to the case that the Rogers Court called "Indiana's seminal premises liability case," 63 N.E.3d at 323, Burrell v. Meads was significant in the development of Indiana premises liability law for several reasons. First, it marked a change in the classification of a social guest from a licensee to that of an invitee. Burrell, 569 N.E.2d at 643. As a result of this change, the duty that a landowner owes to a social guest was elevated to the "highest duty" under premises liability: the duty to exercise reasonable care for a social guest's
Second, Burrell adopted the Restatement (Second) of Torts § 343 as the "best definition" of the landowner/invitee duty. Id. This section provides that:
Burrell, 569 N.E.2d at 639-40 (quoting the Restatement (Second) of Torts § 343). Rogers reaffirmed that "[w]hen a physical injury occurs as a result of a condition on the land, the three elements described in Restatement (Second) of Torts section 343 accurately describe the landowner — invitee duty." Rogers, 63 N.E.3d at 322-23. Put another way, § 343 continues to provide "fixed parameters" that "limit[] the scope of the duty" that landowners owe invitees, but only as it applies to dangerous conditions on the land. Id. at 323. "In order for a premises liability theory to apply, each of the three elements of § 343 must be present." Id. at 322 (quoting Duffy v. Ben Dee, Inc., 651 N.E.2d 320, 322 (Ind. Ct. App. 1995)).
The first element under § 343 provides that a possessor of land is subject to liability for physical harm caused to his invitees by a condition on the land only if he "knows or by the exercise of reasonable care would discover the condition, and should realize that it involves an unreasonable risk of harm to such invitees." Burrell, 569 N.E.2d at 639-40 (quoting the Restatement (Second) of Torts § 343).
Each Defendant argues that Ms. Sturgis' claim fails on the first element of § 343. For example, Mr. Rudden alleges that he "did not have actual knowledge of any problem with the balcony rail that posed a risk to anyone leaning against it" and he also "had no constructive knowledge of any problem with the balcony rail." [
Ms. Sturgis does not argue that Defendants had actual knowledge of the railing's condition. However, she contends that "there are sufficient facts to create a jury question on the issue of Defendants' constructive notice." [
In their reply briefs, many Defendants reiterate that they had no constructive notice under § 343. Mr. Rudden, for example, contends Ms. Sturgis' "repeated references" to "`the railing's dangerous condition' and a `defect in the railing' fail to sustain her burden of proving the first element of a premises liability case, as [her] arguments are not evidence." [
Ms. Sturgis does not address the issue of constructive knowledge in either of her Sur-replies. [
The rationale behind the first element of § 343 is that an invitor "is not the insurer of the invitee's safety" so "before liability may be imposed on the invitor, it must have actual or constructive knowledge of the danger." Schulz v. Kroger Co., 963 N.E.2d 1141, 1144 (Ind. Ct. App. 2012); Bearman v. Univ. of Notre Dame, 453 N.E.2d 1196, 1198 (Ind. Ct. App. 1983). Put another way, "a landowner's duty of care to an invitee is a known or should have known standard." Wellington Green Homeowners' Ass'n v. Parsons, 768 N.E.2d 923, 929 (Ind. Ct. App. 2002) (citing Burrell, 569 N.E.2d at 640). Indiana courts have found that "[t]here is constructive knowledge when a condition has existed for such a length of time and under such circumstances that it would have been discovered in time to have prevented injury if the invitor had used ordinary care." Gasser Chair Co. v. Nordengreen, 991 N.E.2d 122, 126-27 (Ind. Ct. App. 2013). Indiana courts have looked to the specific evidence put forth by the parties in order to determine whether a trier of fact could infer that a defendant knew or should have known of the particular condition. See id. at 126 (finding no constructive knowledge where there "had been no reported problems" of a harmful condition on the land); Wellington, 768 N.E.2d at 928-29 (finding no constructive knowledge where there was no evidence that appellants knew or
In this case, the issue of constructive knowledge simply comes down to whether there is any evidence in the record that Defendants should have known about the condition of the railing. The only factor Ms. Sturgis points to in this regard is the fact that Defendants had resided on the premises for 15 months prior to the railing collapse. But Ms. Sturgis presents no evidence other than her own conjecture to support the notion that there had, in fact, been deterioration of the railing since Defendants took possession of the property. Nor does she cite any authority for the proposition that possession for a certain amount of time, without more, equates to constructive knowledge of a premises' defects. Adopting such a rule would essentially result in this Court imposing strict liability for tenants who have been in possession of property for 15 months or longer, and would run afoul of the Indiana Supreme Court's admonition against imposing blanket duties. See Goodwin, 62 N.E.3d at 394 (stating that "to impose a blanket duty on proprietors to afford protection to their patrons would make proprietors insurers of their patrons' safety which is contrary to the public policy of this state," and that adopting such a rule "would abandon the notion of liability based on negligence and enter the realm of strict liability in tort which assumes no negligence of the actor, but chooses to impose liability anyway") (quotations omitted). As such, the Court concludes that Defendants' possession of the rental house for 15 months does not constitute constructive knowledge.
Ms. Sturgis presents no other evidence that Defendants had constructive knowledge about the balcony's condition. For example, she presents no evidence of prior complaints about the balcony's condition. To the contrary, the record indicates that there had been no previous complaints about the rail. [
Having found no actual or constructive knowledge, the Court concludes that Ms. Sturgis' claims against Defendants fail as a matter of law under the Restatement (Second) of Torts § 343, as adopted by Burrell. Although the inquiry may stop there, the Court will briefly address the parties' arguments regarding the second and third elements of § 343.
Four Defendants present arguments concerning the second element of § 343, which imposes liability only if a possessor of land should expect that an invitee "will not discover or realize the danger, or will fail to protect themselves against it." Burrell, 569 N.E.2d at 639-40 (quoting the Restatement (Second) of Torts § 343). Mr. Silvers, Mr. Bodek, Mr. Schreibman, and Mr. Benzimra each argue that Ms. Sturgis' testimony regarding her observations of the balcony show that she "was at least in an equal position to know of the condition of the railing" as they were. [
"Whether a landowner has superior knowledge goes to the question of breach, not of duty, and it is one factor among many used to determine if there was a breach." Nagel v. N. Indiana Pub. Serv. Co., 26 N.E.3d 30, 46 (Ind. Ct. App.) (quoting Rhodes v. Wright, 805 N.E.2d 382, 388 (Ind. 2004)). Accordingly, the Court will consider Defendants' arguments as they relate to breach, as set forth in Part III.B, herein.
The third element under § 343 provides that a possessor of land is subject to liability for physical harm caused to his invitees by a condition on the land only if he "fails to exercise reasonable care to protect them against the danger." Burrell, 569 N.E.2d at 639-40 (quoting the Restatement (Second) of Torts § 343).
Mr. Rudden, Mr. Silvers, Mr. Schreibman, and Mr. Benzimra each argue that there is no genuine issue of material fact as to the third element of § 343. Mr. Rudden argues that he was in "no position to take precautions" to protect Ms. Sturgis from risks she did not perceive because he was at the library when the accident occurred. [
Here again, Ms. Sturgis does not make any specific arguments regarding the third element of § 343.
Having found that there is no evidence that Defendants had actual or constructive knowledge of the railing's condition, it follows that Defendants could not have protected Ms. Sturgis from a dangerous railing of which they were unaware. See, e.g., Wal-Mart Stores, Inc. v. Wall, 712 N.E.2d 1015, 1017 (Ind. Ct. App. 1999) (finding evidence of a failure to protect customers from ice only after finding that constructive knowledge existed).
The designated evidence conclusively establishes that one of the elements of the premises liability test is not satisfied. As such, Defendants did not owe Ms. Sturgis a duty as a matter of law. The Court will, however, briefly discuss breach.
The parties present fairly succinct discussions concerning breach, and the Court will follow suit. Each Defendant alleges that there was no breach of duty in this case because Defendants' knowledge was no greater than Ms. Sturgis'. [
In response, Ms. Sturgis argues that because "party guests undoubtedly obscured [her] view of the railing," a jury question exists "as to whether Defendants had superior knowledge of the railing's condition." [
The parties do not discuss breach in their reply and surreply briefs.
Generally, whether a breach of duty has occurred is a question of fact. Kroger Co. v. Plonski, 930 N.E.2d 1, 9 (Ind. 2010). However, a breach of duty may be determined as a matter of law when the facts are undisputed and lead to a single inference or conclusion. Id. "The
As with duty, the question of breach requires the Court to examine the specific evidence put forth by the parties. Given the Court's earlier finding that Defendants lacked both knowledge and constructive knowledge of the railing's condition, the Court will only examine the evidence surrounding Ms. Sturgis' comparative knowledge. On this point, Ms. Sturgis speculates that Defendants' comparative knowledge of the railing was greater than hers, stating that "party guests undoubtedly obscured [her] view of the railing." [
Viewing the facts and drawing inferences in the manner most favorable to Ms. Sturgis, the evidence in this case does not present a triable issue of fact regarding whether Defendants breached their duty of reasonable care to Ms. Sturgis. As such, even assuming arguendo that Defendants owed her a duty, based on the evidence before the Court, Defendants would nonetheless be entitled to summary judgment on the issue of breach.
The Court's inquiry regarding negligence ends where it began: with an observation quoted by the Indiana Court of Appeals over 100 years ago that when a Court rules that there is no evidence of negligence, it does "something more than is embraced in an ordinary ruling that there is no evidence of a fact." Cincinnati, 34 N.E. at 617 (quoting Holmes, Common Law at 115). Instead, it rules that the acts or omissions in question "do not constitute a ground of legal liability; and in this way the law is gradually enriching itself from daily life, as it should." Id.
Lacking any precedential case with analogous facts, the Court applied the principles set forth by the Indiana Supreme Court in Rogers v. Martin, 63 N.E.3d 316 and Burrell v. Meads, 569 N.E.2d 637, and found no evidence of negligence on the part of Defendants. Accordingly, the Court
In addition, as set forth herein, the objections put forth by Mr. Silvers, Mr. Weingold, and Mr. Bodek are
As a result of the foregoing, the only remaining defendant in this case is Dylan Schwaber, against whom the Court entered a default on October 21, 2016 pursuant to Rule 55(a) of the Federal Rules of Civil Procedure. [
